Ethics Counsel on www.OKbar.org

ORPC Changes at a Glance

By Gina Hendryx, OBA Ethics Counsel

Amendments to the Oklahoma Rules of Professional Conduct as approved by the Oklahoma Supreme Court will become effective Jan. 1, 2008. These changes were prompted by extensive updates to the ABA’s Model Rules of Professional Conduct. The current Oklahoma rules are based substantially on the ABA Model Rules and the adopted amendments reflect these updates as well as current Oklahoma modifications.

The following is a brief summary of a few of the rule changes.

Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer

Language from the model rule was added to permit a lawyer to take action on behalf of the client that is impliedly authorized to carry out the representation. A lawyer may also limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Rule 1.4 Communication

This amended rule clarifies and specifies a lawyer’s duty to communicate with the client. The lawyer shall promptly inform the client of any decision or circumstance which requires the client’s informed consent and shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished. Comment [4] states that when a client makes a reasonable request for information, prompt compliance is required from the lawyer. However, if a prompt response is not feasible, the lawyer or a member of the lawyer’s staff shall acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged.

Rule 1.5 Fees

A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount of expenses. The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. The contingent fee agreement shall be in writing and signed by the client. The contingent fee agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.

This rule permits division of a legal fee between lawyers who are not in the same firm. The division may be made if it is in proportion to the services performed by each lawyer or if each lawyer assumes joint responsibility for the representation. The client must agree to the arrangement and the agreement must be confirmed in writing. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.

Rule 1.6 Confidentiality of Information

There will be significant changes to this rule as of Jan. 1. Rule 1.6 governs the disclosure by a lawyer of information relating to the representation of a client. The new amendments permit an attorney to disclose information in certain circumstances to prevent reasonably certain death or substantial bodily harm, to prevent the client from committing a crime or a fraud that is reasonably certain to result in substantial injury to the financial or property interests of another in furtherance of which the client has used the lawyer’s services. The rule will also permit disclosure of confidential information so that the lawyer may obtain advice on the lawyer’s compliance with the Rules of Professional Conduct.

Rule 1.7 Conflict of Interest: Current Clients

Rule 1.7 prohibits representing a client if the representation involves a concurrent conflict of interest with limited exceptions. A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client. If the representation meets one of the exceptions, each
affected client must give informed consent, confirmed in writing to the representation.

Rule 1.8 Conflict of Interest: Current Clients: Specific Rules

Amendments to Rule 1.8 include language in (c) clarifying who are “related persons” for the purpose of preparing instruments giving the lawyer or a person related to the lawyer a substantial gift. Rule 1.8 will permit a lawyer to pay court costs and litigation expenses on behalf of an indigent client. Rule 1.8(j) adds language that expressly prohibits sexual relations between a lawyer and a client unless: (1) a consensual sexual relationship existed between them when the client-lawyer relationship commenced and (2) the relationship does not result in a violation of Rule 1.7(a)(2).

The full text of these and all the amendments can be found at www.okbar.org/members/EthicsCounsel/RulesProfessionalConduct.aspx. Further information on additional rule amendments will be summarized in the October and December Oklahoma Bar Journal theme issues.

Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact Ms. Hendryx at ginah@okbar.org or (405) 416-7083; (800) 522-8065.

Originally published in the Oklahoma Bar Journal -- Aug.4, 2007 -- Vol. 78; No.21.